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November 9, 2018

On November 5, the FDA released non-binding guidance intended to answer questions related to Nutrition Facts and Supplement Facts Label and Serving Size final rules. As we previously reported, the rules were finalized in May 2016 and initially set a general compliance date of July 2018. The FDA has extended that deadline to January 1, 2020 for manufacturers with $10 million or more in annual food sales. Manufacturers with less than $10 million in annual food sales have an extra year to comply, until January 1, 2021.

The May 2016 rules require a revamped Nutrition Facts label that, among other things,

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October 12, 2018

As we reported in June, a bi-partisan assembly of 103 members of the House of Representatives wrote a letter to Attorney General Jeff Sessions and asked the Department of Justice (“DOJ”) to “state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” That letter urged the DOJ to “provide guidance and clarity with regard to website accessibility under the … ADA.”

On September 25, the DOJ responded to that letter. While the response does not directly address the members’ questions, it does state that the DOJ “is evaluating whether promulgating specific web accessibility standards through regulations is necessary and appropriate to ensure compliance with the ADA.”

The letter also provides some guidance that could prove useful to retailers

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October 4, 2018

California Governor Brown recently signed into law SB 1121, which amends the California Consumer Privacy Act of 2018 to provide much-needed relief to retailers and other businesses that collect consumer information. The amendments take effect immediately.

The California Retailers Association (CRA) worked successfully with other business leaders as part of the Privacy Coalition to secure passage and signature of SB 1121, and will continue to work on a more comprehensive clean-up bill in 2019.

As we previously reported, the Act grants consumers various rights with regard to their personal information held by businesses, including:

The right to request that a business provide it with specific information the business has collected about them, including categories of information sold, and third parties to whom information is sold.

The right to request deletion of personal information the business has collected about the consumer. The business must comply unless one

July 20, 2018

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July 20, 2018

Seattle’s ban on plastic straws and utensils took effect on July 1, after the expiration of an exemption in a 2008 law requiring one-time-use food-service items to be compostable or recyclable. The ban applies to food service businesses, including restaurants, delis, coffee shops, food trucks, cafeterias, and grocery stores.

Instead of providing plastic straws and utensils, on request, businesses may provide approved compostable alternatives for dine-in service, and compostable or recyclable take-out packaging. Though compostable plastic straws are allowed, environmental groups advocate using compostable paper-based straws. Flexible plastic straws can be provided to customers who need a straw because of medical reasons.

The law imposes fines of $250 on businesses that fail to comply. Other U.S. cities have considered similar bans on plastic straws. A similar ban in San Francisco passed a committee vote on Monday, and goes before the full board next week.

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June 25, 2018

The Eleventh Circuit Court of Appeals has held that a prior settlement agreement, pursuant to which a defendant has agreed to improve website accessibility, does not necessarily render moot a new website accessibility lawsuit.

In Haynes v. Hooters of America, LLC, Case No. 17-13170 (11th Cir. June 19, 2018), the Court of Appeals concluded that the “plaintiff’s claims are not moot” as a result of a settlement agreement between Hooters and a different plaintiff in an almost identical prior lawsuit that required Hooters to improve accessibility of its website within 12 months.

As we previously reported, the district court had granted Hooters’ motion to dismiss the action, on grounds that Hooters was in the process of actively implementing a remediation plan for its website, and therefore the prior agreement rendered the new ADA action moot.

The Eleventh Circuit rejected this argument, however, and held that “this case is

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June 14, 2018

Retailers and manufacturers should take steps now to ensure they are compliant with the new California Proposition 65 warning regulations that take effect on August 30, 2018.

Proposition 65 prohibits retailers and manufacturers from knowingly and intentionally exposing California consumers to a chemical known to the State of California to cause cancer or developmental or reproductive harm without first providing a “clear and reasonable warning.” (Cal. Health & Safety Code § 25249.6.) The regulations provide examples of “safe harbor” warnings that are deemed to be clear and reasonable under the new amendments. Notably, the use of the specific “safe harbor” warnings included in the regulations is not actually required. Retailers and manufacturers can use any clear and reasonable warning; however, using the examples provided ensures that the warning is sufficient.

As we previously reported, amendments to the warning regulations were issued in August 2016. The 2016 and the more

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June 7, 2018

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers. The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

Require mandatory declarations for “added sugars” in grams and as a percentage of Daily Value (% DV);

Update the list of declared nutrients. Disclosure of vitamin D and potassium will be required. Calcium and iron will continue to be required. Vitamins A and C will no longer be required but can be included on a voluntary basis.

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April 13, 2018

The FTC has sent warning letters to six major companies that market and sell automobiles, cellular devices, and video gaming systems warning against warranty tie-in provisions that state consumers must use specified parts or service providers to keep their warranties intact.

Unless warrantors provide the parts or services for free or receive a waiver from the FTC, such statements generally are prohibited by the Magnuson-Moss Warranty Act, the federal law that governs consumer product warranties.

Each company that received a warning letter used different language, but here are examples of questionable provisions:

The use of [company name] parts is required to keep your . . . manufacturer’s warranties and any extended warranties intact.

This warranty shall not apply if this product . . . is used with products not sold or licensed by [company name].

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March 30, 2018

The Eleventh Circuit Court of Appeals is set to hear oral arguments on April 11 concerning whether a website accessibility plan pursuant to a prior settlement agreement moots injunctive relief claims under Title III of the Americans With Disabilities Act.

In Haynes v. Hooters of America, LLC, the U.S. District Court for the Southern District of Florida granted Hooters’ motion to dismiss on grounds that the company has already agreed to make its website accessible pursuant to a prior settlement agreement. Judge Robert Scola held that the prior agreement rendered moot the plaintiff’s ADA action, since the ADA does not provide for recovery of damages, only injunctive relief. Judge Scola is the judge that previously ruled after trial that Winn Dixie’s website was not accessible in violation of the ADA.

Other retailers, including Outback Steakhouse and Panda Express, have also been successful in using the same argument against the same plaintiff to

March 27, 2018

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March 27, 2018

Washington has signed into law the Healthy Food Packaging Act (H.B. 2658/S.B. 6396), making the state the first in the country to ban perfluorinated chemicals (PFAs) in food packaging.

If the Washington’s Department of Ecology identifies safer alternatives to PFAs by January 1, 2020, the law will ban PFAs in paper food packaging effective January 1, 2022. If the state is unable to find a safer alternative, the law will not go into effect and the Department of Ecology must annually review the availability of alternatives. When the department finds an acceptable alternative, the ban will go into effect two years later.

Washington is not the only state to target chemicals in food packaging. California is considering regulating food packaging as part of its Green Chemistry Initiative and the Safer Consumer Products (SCP) implementing regulations, based in part on use of perfluoroalkyl and polyfluoroalkyl substances that “create grease-proof and

DTSC selected a total of seven product categories to include in the Plan. Five categories have been carried over from the 2015-2017 Plan:

Beauty, personal care, and hygiene products

Cleaning products

Household, school, and workplace furnishings and décor

Building products and materials used in construction and renovation

Consumable office, school, and business supplies

DTSC has also added two additional categories – food packaging and lead-acid batteries. Clothing products and fishing and angling equipment, two of the product categories from the prior Plan, will not be evaluated under this Plan.

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February 16, 2018

Over the past several years, there has been a rise in class action lawsuits against retailers for allegedly deceptive price comparison advertising. Many of these lawsuits have alleged that retailers advertised “phantom” discounts from their own “former” or “original” prices, or “retail” or “list” prices at which the products were never actually offered for sale.

As we recently reported, fashion retailer Ann Taylor recently settled for $6.1 million a false discounting class action in New York federal court alleging that prices at its outlet stores were listed as “marked down” from prices that never applied to the items.

In another recent example, last week a California federal court denied Hobby Lobby’s motion to dismiss a proposed class action lawsuit alleging the retailer used a fake marked price to create the false perception that products were being sold at a discounted rate. In Chase v. Hobby Lobby Stores, Inc.,

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January 8, 2018

2017 was a busy year for retailers and businesses with an online presence, as they faced a wave of demand letters and lawsuits alleging that their websites are inaccessible to the visually impaired and/or hearing impaired in violation of Title III of the Americans With Disabilities Act of 1990 (the “ADA”). As we have previously reported, courts across the country weighed in on the issue throughout the year. To bring an end to 2017, the Department of Justice (“DOJ”) withdrew its proposed rulemaking for accessible websites.

In July 2010, the DOJ announced an Advanced Notice of Proposed Rulemaking related to the issuance of new regulations to cover the accessibility of websites of public accommodations. While businesses with an online presence were waiting for those regulations to be promulgated, plaintiffs began taking the issue to the courts, resulting in a patchwork of conflicting decisions. As we previously reported, in

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December 15, 2017

In response to the Federal Communications Commission’s vote yesterday to dismantle the net neutrality rules regulating businesses that connect consumers to the internet, online retailers have responded that they will support legal and legislative efforts to challenge the repeal.

The FCC’s action reversed the agency’s 2015 Open Internet Order, during the Obama administration, to have stronger oversight over broadband providers. That order, commonly referred to as net neutrality rules, prohibits internet service providers from blocking websites, charging more for access to certain websites, or secretly slowing, or “throttling,” website content. The federal government will also no longer regulate high-speed internet delivery as if it were a utility, like phone service.

“The FCC has effectively ended net neutrality, undoing years of hard work and bipartisan agreement,” said Bill McClellan, Vice President of Government Affairs for the Electronic Retailing Association (ERA). “It is unfortunate that the FCC has disregarded the will of

November 21, 2017

Courts across the country continue to weigh in on the issue of website accessibility. Last week, the U.S. District Court for the District of New Hampshire denied a motion to dismiss filed by online food delivery servicer Blue Apron. In denying the motion, the court found that Blue Apron’s website is a place of public accommodation – despite the fact that Blue Apron operates only online and has no traditional brick and mortar locations. Access Now, Inc. v. Blue Apron, LLC, Case No. 17-cv-00116, Dkt. No. 46 (D. N.H. Nov. 8, 2017).

In so finding, the court relied on binding precedent in the First Circuit, and noted that other Courts of Appeals, namely the Third, Fifth, Sixth and Ninth Circuits, have held that in order to be considered a “public accommodation,” an online business must have a nexus to an actual, physical space. Id. at pp. 9-10. This decision highlights

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